Another common question that we receive from consults with potential clients or even from online inquiries is how does an administrative separation board work?
The first thing that people need to understand is that as long as they have been serving for longer than six years total, either in their enlisted position or more than six years, total as an officer, they are entitled to appear in front of a hearing in front of a board that is guided by three different members. There’s a president of the board and two voting members who will listen to all of the evidence and decide whether or not first there is a factual basis for the separation.
Typically that means whether or not the government has shown by a preponderance or more likely than not what we commonly refer to as 51% standard. Have they demonstrated that by that standard misconduct occurred? The second question that they must answer at this hearing for themselves during deliberations is whether or not if they found misconduct that that would actually trigger or mean for them in their personal voting opinion, that it should also mean the person should be separated. And then lastly, if there’s been any determination that somebody should be separated, they also, as a board will vote by secret ballet to decide whether or not that person should be characterized as honorable, general under honorable conditions or under other than honorable conditions. And so that person has the right to be there. The respondent is what they’re known as the person who is trying to be fired or administratively separated from the service, appears there with their advocate, an attorney who can represent them at the hearing after the government presents their side of things. That attorney advocate then will present evidence and mitigation, evidence and defense, evidence of character, and also lots of documentation of that person’s entire service for that board to consider. And then once the respondent’s council, that advocate who’s acting on behalf of that person who the military is trying to separate.
Once they present their side, they also have the right to provide their own personal information to the board. And there’s a number of different ways and choices that they have after all the evidence is in. Then both sides argue. They have a closing argument. The board’s represent the board listens to the government’s representative, who is known as the board recorder, essentially the prosecutor of this administrative process. And then they listen to the respondent’s council, that attorney advocate who’s representing the soldier service member who is being looked at to be kicked out. And then they close to deliberate and they vote by secret written ballot after a, not a preset amount of time, however long it takes them. We come back, we reconvene on the hearing and the president of the board announces their finding.
Jocelyn Stewart is a UCMJ court-martial attorney who specializes in defense of allegations of sexual assault for all branches of the military worldwide.
Contact the Law Office of Jocelyn C. Stewart at 1-888-252-0927.
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